Jagdish Lal Chawla vs Des Raj Gupta And Ors.
2007 Latest Caselaw 770 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The respondent No. 1 herein, as plaintiff, filed a suit seeking for a decree of specific performance of contract dated 3rd February, 1975. During the pendency of the aforesaid suit, counsel for defendant No. 1 (appellant herein), against whom a decree of specific performance of contract was sought to be passed, directing him to perform his part of the agreement, made a statement on 25th September, 2001 that there is no dispute with regard to the agreement to sell and the GPA and, as a matter of fact, he has no objection if the agreement to sell is acted upon between the parties. Delhi Development Authority was also represented on the said date by their counsel, who contended that in view of revocation of GPA by the defendant No. 1 on 26th June, 1989 and also by letter dated 11th December, 1990, information of which was sent to DDA, the DDA could not convert the policy laid down by Union of India with regard to the scheme of conversion. The court further recorded that defendant No. 1, through his counsel, made a statement in court that there would be no impediment in conversion of land from lease hold to free hold. The court directed that the same should be done within four weeks and if any amount is due and payable by the plaintiff, defendant DDA shall inform the same within one week whereupon payment shall be made.

2. It appears that defendant No. 1 being aggrieved filed an application under Section 151 of the Code of Civil Procedure before the learned Single Judge for recalling the order dated 25th September, 2001. By filing the aforesaid application, the defendant No. 1 wanted that the statement made by Sh. Kalra, Advocate as recorded in the order dated 25th September, 2001, be not read against him. Sh. Kalra, also filed a reply, as notice was issued to him. The said reply was supported by an affidavit filed by him, whereby he stood by the statement as it was on instructions of defendant No. 1 that he made the aforesaid statement. In that view of the matter, the learned Single Judge found no ground to recall the order dated 25th September, 2001 and dismissed the said application. Being aggrieved by both the aforesaid orders, an appeal (FAO (OS) 396/2002) was filed which was considered by the Division Bench of this Court. The Division Bench held by order dated 3rd December, 2002 that the said application (I.A. No. 1152/2002) for recalling the order dated 25th September, 2001 ought to have been posted before Hon'ble Mr. Justice Vijender Jain (as his Lordship was then), who had passed the order dated 25th September, 2001 and since the said order dated 4th September, 2002 was passed by Hon'ble Mr. Justice K.S. Gupta, the same was set aside by the Division Bench vide order dated 3rd December, 2002 with a direction that I.A. No. 1152/2002 be placed before Hon'ble Mr. Justice Vijender Jain.

3. Consequent upon the said order, the matter was again placed before Hon'ble Mr. Justice Vijender Jain on 13th October, 2006 who heard the parties. It was held that in view of the affidavit filed by the counsel for defendant No. 1, defendant No. 1 could not take the plea that he did not instruct the counsel to make a statement on 25th September, 2001 as he is bound by the instructions given by him, on the basis of which the statement was made by the counsel on 25th September, 2001. Being aggrieved by the aforesaid order, the present appeal was filed, on which we have heard the learned Counsel appearing for the parties.

4. It is no doubt true that in the written statement filed by the defendant No. 1, validity of the agreement to sell dated 3rd February, 1975 was challenged by him saying that the same is in executable and is against the public policy. It was also stated in the said written statement that the suit is not maintainable for specific performance as leasehold rights of defendant No. 1 were cancelled by the Lt. Governor on 15th October, 1991.

5. Learned Counsel for the appellant, in support of his contention, relied upon the provisions of Section 18 of the Evidence Act and also a decision of the Supreme Court in Swami Krishnan and Govindanand v. M.D. Oswal Hosiery (Regd.) reported in 96 (2002) DLT 320 (SC). In the said decision it was held that there is no doubt that admission of a party is a relevant material. But having regard to the requirements of Section 18 of the Evidence Act, on the facts of that particular case, the statement made by the counsel of the respondent could not be accepted as an admission so as to bind the respondent. In our considered opinion, reliance on the aforesaid decision by the counsel for the appellant is misplaced as the aforesaid case was decided on the facts of the said case, as clearly mentioned therein. The facts of both the cases are clearly distinguishable and, therefore, ratio of the aforesaid decision is inapplicable to the facts of the present case. So far the provision of Section 18 of the Evidence Act is concerned, in our considered opinion, the said provision is inapplicable and reliance on the said provision is misplaced in view of the facts of the present case wherein counsel appearing for defendant No. 1, in his affidavit filed, has clearly stated that he had made the statement on 25th September, 2001 on clear instructions of defendant No. 1. The aforesaid statement made by the counsel for defendant No. 1 could not be challenged by the defendant No. 1 because in the affidavit filed by the counsel of defendant No. 1 it is clearly recorded that the aforesaid statement was made by the counsel for defendant No. 1 in presence of the defendant No. 1 and under his instructions. There is no reason why the affidavit filed by the counsel for defendant No. 1, who is also an officer of the court, should be disbelieved. The concerned Advocate has standing in the Bar and is a responsible person. His statement on oath was accepted by the learned Single Judge. We find no reason to hold that the aforesaid decision of the learned Single Judge is in any manner arbitrary or vitiated. The stand taken by the defendant No. 1 subsequently, to challenge the statement made by his counsel, on the face of it is an afterthought and a frivolous stand. We, therefore, find no merit in this appeal and the same is dismissed.